Andhra Pradesh High Court - Amravati

G. Subba Narasaiah, vs Badam Uma Maheswar Rao, on 14 October, 2022

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

              SECOND APPEAL No.135 of 2022

JUDGMENT:

Defendant in the suit filed the above second appeal

aggrieved by the judgment and decree dated 18.11.2021 in

A.S.No.56 of 2019 on the file of III Additional District Judge,

Kurnool at Nandyal, confirming the judgment and decree

dated 04.06.2019 in O.S.No.440 of 2017 on the file of

Principal Junior Civil Judge, Nandyal.

2. For the sake of convenience and brevity, parties to this

judgment are referred to as per their array in suit.

3. Plaintiff filed the suit O.S.No.440 of 2017 for recovery of

an amount Rs.2,73,000/-, principal being Rs.2,25,000/-

from the defendant on the strength of promissory note dated

20.10.2016.

4. The averments of the plaint, in brief, are that that

defendant borrowed an amount of Rs.2,25,000/- on

20.10.2016 for his family and business necessities and

executed a promissory note agreeing to repay the same with

interest @ 24% per annum. In spite of demands made by

plaintiff, defendant failed to repay the same. Plaintiff got

issued legal notice dated 12.06.2017. Having received legal

notice, however defendant did not give any reply. Hence, the

suit was filed.

5. Defendant filed written statement and admitted about

borrowing of Rs.2,25,000/-. He further pleaded that he used

to pay the amount regularly to the plaintiff and for that

purpose, he maintained book, which contained signatures of

plaintiff. He also made some part payments by depositing

amount in the bank account of plaintiff and he paid total

amount of Rs.62,000/- out of the amount borrowed and

thus, prayed to dismiss the suit.

6. Basing on the above pleadings, the trial Court framed

the following issues:

(1) Whether the defendant made a part payment of Rs.62,000/- to the plaintiff towards the suit promissory note debt?

(2) Whether the defendant made payments towards the suit debt as pleaded?

(3) Whether the plaintiff is entitled for the entire suit claim?

(4) To what relief?

7. During the trial, plaintiff examined himself as P.W.1

and got marked Exs.A-1 to A-3. On behalf of defendant, he

examined himself as D.W.1 and got marked Ex.B-1.

8. Trial Court on consideration of both oral and

documentary evidence, decreed the suit with costs by

judgment and decree dated 04.06.2019. Aggrieved by the

same, defendant filed appeal A.S.No.56 of 2019 on the file of

III Additional District Judge, Kurnool at Adoni. Lower

appellate Court being the final fact finding Court, after

framing necessary points for consideration and on

consideration of oral and documentary evidence, dismissed

the appeal vide judgment and decree dated 18.11.2021.

Assailing the same, the present second appeal is filed.

9. Heard Sri T.C.Krishnan, learned counsel for the

appellant/defendant.

10. Learned counsel for appellant would submit that the

appellant paid an amount of Rs.62,000/- and in proof of the

same, he filed Ex.B-1. However the Courts below failed to

take note of the same. He also would submit that P.W.1 in

his cross examination admitted about defendant sending

amount to his account, but the same was not properly

considered by the Courts below.

11. A perusal of the pleadings and evidence on record,

undisputed facts are that defendant borrowed an amount of

Rs.2,25,000/- from the plaintiff in 20.10.2016 and executed

Ex.A-1 promissory note. When defendant failed to repay the

same, plaintiff issued Ex.A-2 legal notice dated 12.06.2017.

12. Defendant admitted about execution of suit promissory

note Ex.A-1. Once the defendant admitted execution of suit

promissory note, presumption under Section 118 (a) of the

Negotiable Instruments Act, 1881 attracts arise. The said

presumption is rebuttable and the defendant had to prove

that he paid Rs.62,000/- towards part payment in connection

with Ex.A-1.

13. The defendant is a retired bank manager. He admitted

that he is having acquaintance with the plaintiff for the last

25 years. He also admitted that he never mentioned the

dates of part payments made by him towards suit promissory

note to the plaintiff. Though it was pleaded by the defendant

that he paid Rs.62,000/-, he failed to link up the said part

payments towards discharge of debt under Ex.A-1. He also

failed to examine the maternal uncle of plaintiff to prove that

part payments were made by him as per his instructions.

14. In Bharat Barrel and Drum Manufacturing Company

Vs. Amin Chand Payrelal1, the Hon'ble Apex Court was held

thus:

"Once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any

(1999) 3 SCC 35

defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."

15. In G.Venkata Rama Subbaiah Vs. D.Rasool Naik2, the

composite High Court of Andhra Pradesh held thus:

"Once the execution of the promissory note is admitted or proved, then it is presumed to be supported by consideration unless contrary is proved. The burden is on the defendant to rebut the same by adducing convincing evidence. Unless the defendant rebuts the presumption by adducing convincing rebuttal evidence, the evidential burden would not shift back to the plaintiff who has legal burden only after adducing such convincing rebuttal evidence, it can be held that thereafter the presumption under Section 118 does not come to the rescue of the plaintiff."

16. Trial Court on appreciation of evidence on record,

decreed the suit. Lower appellate Court, being the final fact

finding Court also considered the evidence on record and

dismissed the appeal. It is pertinent to mention here that in

Ex.B-1 note book, it was mentioned that an amount of

Rs.2,25,000/- was borrowed on 30.10.2016, whereas suit

promissory note is dated 20.10.2016. If any part payment is

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made in the natural course, payment endorsements will be

scribed on the backside of the promissory note by giving date

and details of amount paid. The endorsements will be signed

by executant. D.W.1, a former bank manager, relied upon the

entries in Ex.B-1. In the opinion of this Court, Ex B-1 is self-

serving document without any authentication and hence it

cannot be relied upon. In the absence of Ex B-1, in view of

the admission made by D.W.1, no amount was paid towards

the debt and hence the findings recorded by Court do not call

for any interference from this Court.

17. Regarding scope of Section 100 CPC, the Hon'ble Apex

Court in Hero Vinoth Vs. Seshammal3, held that:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being

AIR 2009 SC 1481

contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

18. The Hon'ble Apex Court in Randhir Kaur Vs. Prithvi

Pal Singh and Ors.4, held thus:

"16. ....A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only

(2019) 17 SCC 71

where there is an error in law or procedure and not merely an error on a question of fact."

19. The findings of the facts recorded by the Courts below

are based on appreciation of both oral and documentary

evidence. Unless, the appellant demonstrates that substantial

question of law involved in the second appeal, interference of

this Court in exercise of jurisdiction under Section 100 of

CPC is not warranted. In this case on hand, as observed

supra, no questions of law much less substantial questions of

law arose in the appeal. Hence, the second appeal is liable to

be dismissed, however, without costs.

20. Accordingly, the second appeal is dismissed at

admission stage. No order as to costs.

As a sequel, all the pending miscellaneous applications